(1) REPORTABLE: NO
IN T.HE HIGH COURT OF SOUTH AFRICA
{GAUTENG DIVISION, PRETORIA)
(2) OF INTEREST O OTHER JUDGES: NO
(3) REVISED.
DATE: ~ o-,$ UJL/,
SIGNATURE
In the matter between:
SAREL GERHARDUS SMIT
KOBUS VAN VUUREN
GRATIS LAW NPC
and
Case No: 2,026-170750
First Applicant
Second Applicant
Third Applicant
GOVERNMENT PENSIONS ADMINISTRATION AGENCY (GPAA) First Respondent
DIRECTOR: S,PECIAL PENSIQ,NS: KABELO JONATHAN ' N .. O. Second Respondent
MINISTER OF DEFENCE & MILITARY VETERANS Third Respondent
JUDGMENT: APPLICATION: FOR LEAVE TO APPEAL
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The judgment and order are published and distributed electronically.
PA VAN NIEKERK J
[1] On 17 August 2026 the applicants served a "notice of motion" which purports to be an
notice of application for leave to appeal in terms of the provisions of rule 49(1)(b). The
notice is accompanied by an affidavit deposed to be a certain Sande CS Msongelwa. In
that notice and accompanying affidavit it is stated that the applicants apply for leave to
appeal against the judgment and reasons of this court contained in the written reasons
of 14 August 2026 and in terms whereof an application for review of a decision of the
Respondents in terms of the Promotion of Administrative Justice Act ("PAJA') was
dismissed.
[2] In terms of Consolidated Practice Directive 1 of 2024 the Applicants were notified that
the application for leave to appeal will be conducted by a video link on 27 August 2026.
During this hearing, only deponent to the affidavit referred to above appeared and
informed this court that the first- and second applicants failed to gain access, but that the
application can be disposed of on heads of argument filed on their behalf as well as the
accompanying affidavit referred to above.
THE NOTICE OF APPLICATION FOR LEA VE TO APPEAL:
[3] In terms of rule 49(1 )(b) an applicant who seeks leave to appeal is required to file a notice,
setting out the grounds upon which leave be sought clearly and concisely. This court
must be satisfied, on rational reasons advanced therein, that there is a reasonable
prospect that another court would uphold the relief sought in the main application, failing
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which this court is enjoined by virtue of section 17(1)(a)(i) of the Superior Courts Act 10
of 2013, to refuse the application. In Songono1 it was held as follows:
"In attemped compliance therewith the applicant filed a document headed 'Application for
leave to appeal' in which he purported to set out the grounds upon which leave to appeal
was to be sought. These so-called 'grounds' constitute a diatribe of some 17 pages
criticising the judgment, analysing (at time incorrectly) certain of the evidence and the
findings made, putting forward certain submissions and quoting various authorities. This
lengthy, convoluted and at times disjointed criticism of the judgment did not clearly and
succinctly spell out the grounds upon which leave to appeal is sought in clear and
unambiguous terms - indeed, it served more to deceive, particularly as, during the course
of argument, there were several points which the applicant's counsel, Mr Bursey, sought
to raise which were not indicated in the document".
[4] This court has endorsed that position. In Municipality of Thabazimbi2 it was held with
express reference to the Songono judgment above that:
"Where a party fails to comply with the peremptory provisions of rule 49(1)(b) inasmuch
as they do not set out the grounds of appeal in clear, unambiguous and succinct terms,
the court hearing the application may, on that basis, dismiss the application".
[5] In casu, the "notice of motion" gives notice that the applicants seek an order as follows:
1 Songono v Minister of Law and Order 1996 (4) SA 384 (E).
2 Municipality of Thabazimbi v Badenhorst 2024 JDR 0991 {GP} at para 17.
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"1. Grating leave to appeal the judgment.
2. Disbursements costs order, including the costs of the dismissed application
against any party opposing this application".
[6] The notice therefore does not set out the grounds for the intended appeal succinctly and
in clear grounds. Instead, an affidavit is attached to that notice which has the following
salient features:
[6.1] The affidavit consists of 17 pages which deals seriatim with every paragraph
of this court's judgment, similar to an answering affidavit;
[6.2] The affidavit contains various references to submissions made during the
hearing, consisting of facts which were not contained in the founding affidavit
and therefore constitutes another and further attempt to introduce evidence
which were not contained in the founding affidavit;
[6.3] The affidavit contains annexures in the form of documents which are intended
to address certain of the issues raised in the judgment, which were not
attached to the original application;
[6.4] The affidavit is signed by an individual lay person who is not an admitted
attorney or advocate, and the sole director of the Third Applicant.
[7] The affidavit accompanying the notice is irregular and does not constitute a notice in
terms of rule 49(1)(b). The deponent to that affidavit is not allowed to represent any of
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the Applicants and cannot make submissions on their behalf in documents placed before
this court. 3
[8] Furthermore, that affidavit, which purports to be a notice in terms of Rule 49(1 )(a), fits
squarely into the description of the notice of appeal which was referred to in the Songono
judgment above. It also consist of 17 pages, being nothing more than a diatribe which
criticise every paragraph of this courts' judgment in an incoherent manner, impermissibly
referring to facts which were not disclosed in the founding affidavit in the main application,
without disclosing any tenable rationale why leave to appeal should be granted.
[9] Significantly, the attempt to introduce grounds to establish leave to appeal does not deal
with a material issue raised in paragraph 7(1) of the judgment, where it was held that the
Applicants failed to institute the review proceedings timeously as required in section 7(1)
of PAJA. In the purported application for leave to appeal there is an attempt to introduce
evidence of various steps taken by the Applicants, unrelated to the institution of an
application, but a complete failure to explain why the application was not lodged
timeously.
[10] In the premises, the Applicants failed to comply with the provisions of rule 49(1)(b) and
the application stands to be dismissed on that basis. However, even if the purported
notice in terms of rule 49(1 )(b) be accepted in the form that it is, it once again fails to
address the absence of a proper condonation application under section 9(1) of PAJA in
the main application and under those circumstances there is no reasonable prospect that
3 See Mvenya v Standard of South Africa Ltd and Another {21/46591) {2025} ZAGPJHC 406 {26 April 2025} where
reference was made inter alia to Commissioner South Africa Revenue Services v Candice-Jean van der Merwe
[2022] ZASCA 106; SATC 10 (30 June 2022).
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another court will hold that the Applicants complied with their obligations in terms of
section 7 ( 1) of PAJA and/or section 9( 1) thereof.
[1 ~1--... The application for leave to appeal is therefore dismissed.
PA VAN NIEKERK
JUDGE OF THE GAUTENG DIVISIONl
PRETORIA
Date application heard; 27 August 2026
Date judgment reserved; 27 August 2026
, .
Date judgment delivered; ~9 O 'Z